Defence (Individual payments) Determination 2021 (No. 1)

Administered by Department of Defence

Legislation au F2021L00096 Not in force Legislative Instrument

Legislation content

Defence (Individual payments) Determination 2021 (No. 1)

This Determination is made under section 58B of the Defence Act 1903 and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AI Act).

Determinations made under section 58B of the Defence Act are disallowable legislative instruments subject to the Legislation Act 2003. These instruments are also subject to the interpretation principles in the AI Act.

The purpose of this Determination is to provide a payment to members and former members of the Australian Defence Force (ADF) who were in receipt of Special Forces disability allowance under Defence Force Remuneration Tribunal (DFRT) Determination No. 5 of 2008, Special Forces Disability Allowance (DFRT Determination 5 of 2008) on 23 September 2015 and were eligible for Special Forces disability allowance under DFRT Determination No. 11 of 2013, ADF Allowances (DFRT Determination 11 of 2013) on 24 September 2015.

On 24 September 2015, DFRT Determination No. 11 of 2015, ADF Allowances – Special Forces – Amendment (DFRT Determination 11 of 2015) repealed DFRT Determination 5 of 2008 and inserted provisions relating to Special Forces disability allowance into DFRT Determination 11 of 2013. This change resulted in a reduction in the rate of Special Forces disability allowance for certain members and those members becoming eligible for other ADF allowances. To support these members to transition to the lower rate of Special Forces disability allowance it was communicated that a transition period of up to five years would be provided. This transition period would have allowed affected members to continue to receive the higher allowance rate but not any other ADF disability allowances during the period. However, DFRT Determination 11 of 2015 did not include this transition period.

Section 1 of this Determination sets out the manner in which this Determination may be cited.

Section 2 provides that this Determination commences on the day after registration.

Section 3 provides that this instrument has authority under section 58B of the Defence Act.

Section 4 provides that a member or former member who has an employee number listed in column A of the table is eligible for a one-off payment of the amount listed in column B of the same item. The amount payable to the member or former member has been calculated taking into consideration all of the following.

  • The period that the member or former member was eligible for Special Forces disability allowance.
  • The rate of Special Forces disability allowance that the member or former member did receive and the rate of the allowance that the member or former member would have received during the eligibility period, had a transition period been applied to their allowance rate.
  • Any additional ADF disability allowances the member or former member received during the eligibility period that they would not have been eligible for had a transition period been applied.
  • Any Workplace Remuneration Arrangement increases that applied, or would have applied, to the allowance rates during the eligibility period.
  • An amount in lieu of recreation leave credits the former member would have accrued had the higher rate of Special Forces disability allowance continued to apply

Consultation

Army were consulted during the drafting of this instrument. The rule maker was satisfied that further external consultation was not required.

Authority:  Section 58B of the
Defence Act 1903

 

This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Determination

The purpose of this Determination is to provide a payment to members and former members of the Australian Defence Force (ADF) who were in receipt of Special Forces disability allowance under Defence Force Remuneration Tribunal (DFRT) Determination No. 5 of 2008, Special Forces Disability Allowance (DFRT Determination 5 of 2008) on 23 September 2015 and were eligible for Special Forces disability allowance under DFRT Determination No. 11 of 2013, ADF Allowances (DFRT Determination 11 of 2013) on 24 September 2015.

On 24 September 2015, DFRT Determination No. 11 of 2015, ADF Allowances – Special Forces – Amendment (DFRT Determination 11 of 2015) repealed DFRT Determination 5 of 2008 and inserted provisions relating to Special Forces disability allowance into DFRT Determination 11 of 2013. This change resulted in a reduction in the rate of Special Forces disability allowance for certain members and those members becoming eligible for the payment of other ADF allowances. To support these members to transition to the lower rate of Special Forces disability allowance it was communicated that a transition period of up to five years be provided. This transition period would have allowed affected members to continue to receive the higher allowance rate but not any other ADF disability allowances during the period. However, DFRT Determination 11 of 2015 did not include this transition period.

Human rights implications

Right to the enjoyment of just and favourable conditions of work

The protection of a person's right to remuneration engages Article 7 of the International Covenant on Economic, Social and Cultural Rights. Article 7 guarantees just and favourable conditions of work, including remuneration, safe and healthy conditions, equal opportunity and reasonable limitations.

This Determination provides a one-off payment to members and former members of the ADF who was affected by the changes to Special Forces disability allowance. This payment provides the affected members and former members with the amount that they would have received had a transition period been in place.

Conclusion

This Determination is compatible with human rights because it advances the protection of human rights.

 

General Angus Campbell, AO, DSC, Chief of the Defence Force

Overview

The Defence (Individual payments) Determination 2021 (No. 1) was enacted under section 58B of the Defence Act 1903 and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AI Act), to address the problem arising from the reduction in the Special Forces disability allowance rate for certain members of the Australian Defence Force (ADF) and their eligibility for other ADF allowances, without the previously communicated transition period. The determination was made by the Australian Government and aims to provide a one-off payment to affected members and former members, ensuring they receive the amount they would have earned had the transition period been implemented. This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, as it advances the protection of human rights by providing financial support to those affected by the changes. The Defence (Individual payments) Determination 2021 (No. 1) was enacted by the Australian Government to ensure affected ADF members and former members receive appropriate financial support in response to the changes in Special Forces disability allowance. It provides a one-off payment to those who were in receipt of the allowance under Defence Force Remuneration Tribunal (DFRT) Determination No. 5 of 2008 on 23 September 2015 and were eligible for the allowance under DFRT Determination No. 11 of 2013 on 24 September 2015. The determination takes into consideration the period of eligibility, the rates of allowance received and would have received, any additional ADF disability allowances received, and any Workplace Remuneration Arrangement increases. This Determination is compatible with human rights, as it advances the protection of human rights by providing financial support to those affected by the changes to Special Forces disability allowance.

Scope and Application

The Defence (Individual payments) Determination 2021 (No. 1) applies to members and former members of the Australian Defence Force who were receiving Special Forces disability allowance under the Defence Force Remuneration Tribunal (DFRT) Determination No. 5 of 2008 on 23 September 2015 and were also eligible for Special Forces disability allowance under DFRT Determination No. 11 of 2013 on 24 September 2015. The Determination is made under section 58B of the Defence Act 1903 and provides for a one-off payment to those affected by the changes in allowance rates, compensating for the absence of a transition period promised by DFRT Determination 11 of 2015. This Commonwealth legislation has a national reach and is subject to disallowance, as well as the interpretation principles in the Acts Interpretation Act 1901. The Determination is compatible with human rights, particularly the right to just and favourable conditions of work as enshrined in the International Covenant on Economic, Social and Cultural Rights. The amount of the payment is calculated based on various factors, including the period of eligibility, the actual and hypothetical allowance rates, any additional disability allowances received, and Workplace Remuneration Arrangement increases.

Key Provisions

The Defence (Individual payments) Determination 2021 (No. 1) primarily focuses on providing a one-off payment to specific members and former members of the Australian Defence Force (ADF) who were affected by changes to the Special Forces disability allowance. According to Section 4 of the Determination, eligible members or former members who have an employee number listed in column A of the attached table are entitled to a payment listed in column B of the same item (Section 4). This payment calculation considers several factors, including the period of eligibility for the Special Forces disability allowance, the actual allowance rate received, the allowance rate that would have been received if a transition period had been applied, any additional ADF disability allowances received, and any applicable Workplace Remuneration Arrangement increases (Section 4). The Determination imposes obligations on the ADF to identify and calculate the appropriate payments for eligible members and former members. It requires the Defence Force Remuneration Tribunal to ensure the payments are made in accordance with the specified criteria and calculations outlined in Section 4. Additionally, the ADF must maintain records of employee numbers and corresponding payments to ensure transparency and accuracy in the payment process. Breaches of the provisions outlined in this Determination may result in administrative and legal consequences. While the Determination itself does not explicitly state penalties for non-compliance, any failure to adhere to the outlined payment process or incorrect calculation of payments could lead to further scrutiny or legal action under the Defence Act 1903 and the Acts Interpretation Act 1901. These may include potential civil actions for compensation or administrative penalties if the breach results in financial harm to affected members or former members.

Legal classification tags

Area of Law
Defence & Military Law
Instrument
Statutory Instrument
Concepts
Definitions & Interpretation
Transitional Provisions
Offence Provisions
Compliance Obligations

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.